Plaintiff Judicial Watch, Inc. (“Judicial Watch”),
by counsel and pursuant to 5 U.S.C. § 552(a)(4)(E) and
28 U.S.C. § 1920, respectfully requests that attorneys fees and litigation
expenses be awarded to Judicial Watch in the above-captioned action.The motion is supported by a verified
itemization of attorney/paralegal timeand expenses.As explained herein, Judicial Watch’s request
for $12,775.51 is entirely reasonable in light of the facts of this case.

MEMORANDUM
OF LAW

I.Factual
Background.

This case involves Judicial Watch’s efforts to
secure information relating to a December 2001 community meeting hosted by the
United States Postal Service (“USPS”) to discuss the proposed decontamination
of the Brentwood Postal Facility, which was contaminated with anthrax in
October 2001.The facts of this case are
as follows:

On or about December 17, 2002, Judicial Watch sent
a request to the USPS seeking access to the following agency records pursuant
to the Freedom of Information Act (“FOIA”):

a.A full transcript of a USPS hosted
community meeting on Wednesday December 11, 2001, at 6:30 p.m. in the
Auditorium of Gallaudet University’s Kellogg
Conference Center.

b.The minutes of the USPS hosted
community meeting on Wednesday December 11, 2001 at 6:30 p.m. in the Auditorium
of Gallaudet University’s Kellogg Conference Center.

c.A
videotape copy of the USPS hosted community meeting on Wednesday December 11,
2001 at 6:30 p.m. in the Auditorium of Gallaudet
University’s Kellogg Conference Center.

See Affidavit of Christopher J. Farrell, attached as
Exhibit 1 to Plaintiff’s Opposition to Defendant’s Motion for Summary Judgment
and Cross-Motion for Summary Judgment, filed on or about July 7, 2003 (“Farrell
Affidavit”), at ¶ 3; see also Defendant’s Answer and Affirmative
Defenses to Plaintiff’s Complaint (“Defendant’s Answer”) at ¶ 5; Defendant’s
Statement of Material Facts as to Which There Is No Genuine Dispute
(“Defendant’s Statement”) at ¶ 1.

In a letter dated January 14, 2003, the USPS
acknowledged receipt of Judicial Watch’s FOIA request and released several
documents pursuant to the request.See
Farrell Affidavit at ¶ 4; see also Defendant’s Answer at ¶ 6;
Defendant’s Statement at ¶ 2.However,
it withheld release of the videotape, citing FOIA Exemption 6 concerning
“personal privacy.”Id.

On January 23, 2003, Judicial Watch filed an
administrative appeal challenging the USPS’s refusal
to release the videotape.See
Farrell Affidavit at ¶ 4; see also Defendant’s Answer at ¶ 7;Defendant’s
Statement at ¶ 4.When the USPS failed
to respond to Judicial Watch’s administrative appeal in a timely manner,
Judicial Watch filed this action on March 12, 2003.See Farrell Affidavit at ¶ 4; see
also Defendant’s Answer at ¶¶ 8, 9.

After Judicial Watch filed suit, the USPS produced
the videotape at issue.However, the tape
had been redacted. See Farrell
Affidavit at ¶ 5; see also Defendant’s Answer at ¶ 6; Defendant’s
Statement at ¶ 5.The audio, and in some
portions the video, on the tape was edited to mask the names of individuals who
spoke at the community meeting during a question and answer session.See Farrell Affidavit at ¶ 5.

The community meeting had been promoted and/or
advertised to the public and media with no mention of confidentiality.See Farrell Affidavit at ¶ 6.Members of the news media were in attendance,
and video cameras were in plain view inside the auditorium.Id.Members of the public who participated in the question and answer
session did so voluntarily.Id.They voluntarily stood up, moved to a
microphone in the front of the auditorium, and identified themselves by
name.Id.They asked questions about and, in some
cases, commented on the USPS’s proposed
decontamination of the Brentwood Postal facility.Id.They clearly had no expectation of privacy.

Nonetheless, the USPS moved for summary judgment
on June 23, 2003, asking the Court to uphold its redactions under Exemption
6.Plaintiff opposed the USPS’s motion on July 7, 2003 and filed a cross-motion on
that same date.On February 23, 2004,
the Court denied the USPS’s motion for summary
judgment and granted Plaintiff’s cross-motion.The Court ordered the USPS to produce a complete, unredacted
copy of the December 2001 community meeting videotape to Plaintiff.

A party has “substantially prevailed” if it has
“been awarded some relief by [a] court, either in a judgment on the merits or
in a court-ordered consent decree.”Oil, Chemical, and Atomic Workers Int’l Union, 288 F.3d at 456-57
(citing Buckhannon Bd. & Care Home, Inc. v. West Virginia Dep’t of
Health & Human Res., 532 U.S. 598, 603 (2001) (internal quotations
omitted).In this case, the Court denied
the USPS’s motion for summary judgment and granted
Judicial Watch’s cross-motion, finding that the USPS “improperly applied Exemption
6 to redact portions of the December 2001 community meeting videotape.”Memorandum Opinion of
February 23, 2004 at 9.It
ordered the USPS to “provide [Judicial Watch] with a complete, unredacted copy of the December 2001 community meeting
videotape.”Id.
at 10.Clearly, Judicial Watch
“substantially prevailed.”

2.Balancing the Relevant Factors
Warrants an Award.

In addition, before granting an award of attorneys
fees to a plaintiff that has “substantially prevailed,” a Court also must
consider the following four factors: “(1) the public benefit derived from the
case; (2) the commercial benefit to the plaintiff; (3) the nature of the
plaintiff’s interest in the records; and (4) whether the Government had a
reasonable basis for withholding requested information.”Burka v.
U.S. Dep’t of Health & Human Servs., 142 F.3d 1286, 1288 (D.C. Cir. 1998) (internal citations
and quotations omitted).The second and
third factors are “closely related and often considered together.”Cotton v. Heyman,
63 F.3d 1115, 1120 (D.C. Cir. 1995) (quoting Tax Analysts v. United States
Dep't of Justice, 965 F.2d 1092, 1095 (D.C. Cir. 1992)).In determining a plaintiff’s entitlement to attorneys fees, the Court must balance all four
factors.Ralph Hoar & Assocs., 985 F.
Supp. at 9.The balancing of these
factors in this case clearly supports awarding attorneys
fees to Judicial Watch.

a.Public Benefit.

According to the D.C. Circuit, a FOIA action
results in a public benefit if a plaintiff’s victory is “likely to add to the
fund of information that citizens may use in making vital political choices.” Cotton,
63 F.3d at 1120 (quoting Blue v. Bureau of Prisons, 570 F.2d 529, 534
(5th Cir. 1978)).In making this
inquiry, it is important to note that the “central purpose” of FOIA is “to
assist our citizenry in making the informed choices so vital to the maintenance
of a popular form of government.” Blue, 570 F.2d at 533.

For several years, Judicial Watch has been
involved in investigating the USPS’s response to the
October 2001 anthrax contamination at the Brentwood facility and subsequent
decontamination efforts.To this end,
Judicial Watch has been working closely with postal employees at the facility
and an advocacy and support group, Brentwood Exposed, organized to assist the
2,200 Brentwood facility postal employees who were exposed to anthrax in
October 2001.Two Brentwood facility
employees died in the October 2001 anthrax attack and several more were
injured.The attack also caused significant
contamination “downstream” from the facility, including contamination at other
postal facilities and federal office buildings.

Judicial Watch has assisted Brentwood Exposed in
its numerous advocacy efforts and has represented members of Brentwood Exposed
in appearing before various governmental entities, in the media, and in meeting
with local and national political leaders, including District of Columbia
Delegate Eleanor Holmes Norton and U.S. Representative Henry Waxman of the
House Committee on Government Reform, and Senators Joseph Lieberman and Susan
Collins of the Senate Governmental Affairs Committee.

In May 2003, representatives of Judicial Watch and
members of Brentwood Exposed met with and provided voluminous documentation and
information to members of the Government Accounting Office’s Physical
Infrastructure team investigating the 2001 anthrax attacks.In December 2003, they provided briefing
materials to and testified before the District of Columbia Committee on
Government Operations chaired by District of Columbia Councilman Vincent B.
Orange regarding the reopening of the Brentwood facility.Most recently, Judicial Watch produced an
analysis of a Government Accounting Office report concerning the anthrax
exposure at the Brentwood facility, Analysis of GAO Testimony:“U.S. Postal Service -- Clear
Communication With Employees Needed Before Reopening
the Brentwood Facility,” (GAO-04-205T/October 23, 2003).In response to Judicial Watch’s analysis,
Comptroller General of the United States David M. Walker wrote on December 17,
2003: “We view Judicial Watch as an important accountability organization in
Washington, D.C. and very much appreciate your offer to meet with us again and
discuss our review and provide further assistance to us.”

In addition to filing a class action lawsuit
against USPS officials on behalf of several Brentwood facility employees (seeBriscoe, et al. v. U.S. Postal Service Postmaster General John E. Potter, et
al., Civil Action No.03-cv-2084 (RMC)), Judicial Watch also has pursued
other FOIA lawsuits in order to obtain, analyze, and disseminate information
about the USPS’s response to the anthrax
contamination at the facility.SeeJudicial Watch, Inc. v. U.S. Postal Service, Civil Action No. 01-1101
(HHK).Obtaining an unredacted
copy of the USPS’s videotape of the December 2001
community meeting is part of Judicial Watch’s ongoing investigation into the
2001 anthrax contamination at the Brentwood facility and its work with
Brentwood postal facility employees andBrentwood Exposed.

The importance of the decontamination efforts at
the Brentwood facility, which recently reopened, cannot be overstated.Approximately 2,200 individuals work at the
facility and millions of pieces of mail, including much of the mail received by
the federal government, are processed at the Brentwood facility.Confidence in the decontamination effort,
including the discussion held at the December 2001 community meeting, is of the
utmost importance.Dissemination of the
complete, unredacted version of the December 2001
community meeting videotape will assist the public in knowing the whole
story regarding the USPS’s decontamination efforts.
As the Court held, Judicial Watch’s “interest in determining whether the USPS
was genuinely seeking independent community input regarding ‘important
information about the potential [anthrax] contamination problems at the postal
facility certainly fits within ‘FOIA’s central
purpose to ensure that the Government’s activities be opened up to the sharp
eye of public scrutiny.’”[1]Memorandum Opinion of February 23, 2004 at 8-9
(citations omitted).With the stakes so
high, the partial truth is simply not good enough.

b.Commercial Benefit/Nature of
Plaintiff’s Interest.

The second and third factors -- whether a
plaintiff will derive commercial benefit from disclosure and the nature of the
plaintiff’s interests in the records -- are closely related and typically
considered together.Cotton, 63 F.3d at 1120.Judicial Watch is a non-profit, tax-exempt, educational
organization.It has no commercial
interest in this case.Instead, Judicial
Watch’s “public-interest oriented” mission to bring to the public’s attention
information concerning its government is identical to the purpose behind the
FOIA statute.S. Rep. No. 93-854, 93
Cong., 2d Sess. at 19 (1974).Accordingly, Judicial Watch’s entirely
non-commercial motive and interest in disclosure of the videotape fully entitle
it to an award of attorneys fees.

c.Reasonableness
of Government’s Basis for Withholding.

This final criterion provides, in part, that where
the government has unreasonably withheld records, a fee award is appropriate if
the agency was “recalcitrant in its opposition to a valid claim or otherwise
engaged in obdurate behavior.”See
Tax Analysts v. United States Dep't of Justice, 965 F.2d 1092, 1097 (D.C.
Cir. 1992) (citations omitted); Cazalas v.
United States Dep't of Justice, 709 F.2d 1051, 1054 (5th Cir. 1983); Matlack, Inc. v. United States Environmental
Protection Agency, 868 F. Supp. 627, 632 (D. Del. 1994).

The USPS’s conduct clearly
justifies a fee award.This was not a
close case.First and foremost, the USPS
failed to respond to Judicial Watch’s administrative appeal in a timely manner,
forcing Judicial Watch to file suit in order to obtain compliance with
FOIA.Second, the Court resoundingly
rejected the USPS’s attempted withholding under
Exemption 6, which is intended to protect personal privacy.The videotape at issue was taken at a public
meeting during which individuals stepped forward to identify themselves and ask
questions.They clearly did so
voluntarily.These individuals chose to
speak and identify themselves at a meeting in which readily identifiable
members of the local, regional, and national media were in attendance.Memorandum Opinion of
February 23, 2004 at 7.As the
Court found, any privacy interests these individuals might have had in the
nondisclosure of their names was “minimal,” and “[s]uch
open participation and public identification could be found to effectively
waive any privacy interests these individuals may have had.”Id. at 7-8.Moreover, the Court also found that “the
public interest in disclosure of the names of speakers at the community meeting
far outweighs the minimal privacy interest of those persons who spoke at the
public meeting.”Id.
at 8.The USPS had no legitimate
basis for redacting the videotape, and its stubborn refusal to produce the
complete, unredacted tape was unreasonable under the
circumstances.

In the District of Columbia Circuit, fee awards
may be calculated based on the Laffey matrix,
because, in the absence of a specific sub-market analysis of attorney fees,
“use of the broad Laffeymatrix may be
by default the most accurate evidence of a reasonable hourly rate.”Covington, 57

F.3d at
1114 n.5.[2]A copy of the Laffeymatrix is attached as Exhibit 1.Judicial Watch requests that its fee award be calculated under the Laffeymatrix.

A verified itemization of attorney/paralegal time
spent by Judicial Watch in this matter is attached as Exhibit 2.The itemization was generated from the
contemporaneously-kept time records of the (4) individuals who worked on the
case, Meredith L. Cavallo, Paul J. Orfanedes, Dale L.
Wilcox, and David F. Rothstein.The
rates applied to the time recorded in Exhibit 2 are adopted from the LaffeyMatrix.

Ms. Cavallo is an
attorney who graduated from Regent University School of Law in 2000.She has been practicing law continuously
since that time.Based on the Laffey Matrix of hourly rates allowed by the federal
courts in the District of Columbia, the prevailing market rate for an attorney
of Ms. Cavallo’s experience in 2003 was $175 per
hour.

Mr. Orfanedes is an attorney who graduated from
The American University’s Washington College of Law in 1990.He has been practicing law continuously since
that time and is an experienced litigator in the federal courts in the District
of Columbia.Based on the Laffey Matrix of hourly rates allowed by the federal
courts in the District of Columbia, the prevailing market rate for an attorney
of Mr. Orfanedes’ experience in 2003 was $325 per hour.

Mr. Wilcox is an attorney who graduated from
Regent University School of Law in 1996.He has been practicing law continuously since that time and is an
experienced litigator in the federal

courts.Based on the Laffey Matrix of hourly
rates allowed by the federal courts in the District of Columbia, the prevailing
market rate for an attorney of Mr. Wilcox’s experience in 2003 was $215 per
hour.

Mr. Rothstein is a senior litigation
assistant/paralegal who graduated from The Catholic University of America’s
Columbus School of Law in 1994.Based on
the Laffey Matrix, the prevailing market rate
for a litigation assistant/paralegal in 2003 was $100 per hour.

B.Judicial Watch is Entitled to
Reimbursement for Its Litigation Expenses.

Judicial Watch incurred litigation expenses (other
than fees of counsel) of $169.01.This
includes a filing fee of $150.00 to initiate this action and $19.01 in postage
to serve Summonses and copies of the Complaint.See Exhibit 3.As provided
under FOIA and 28 U.S.C. § 1920, these expenses should be awarded to Judicial
Watch.

III.Conclusion.

For the foregoing reasons, Judicial Watch
respectfully requests that it be awarded $12,606.50 in attorneys fees and
$169.01 in litigation expenses pursuant to 5 U.S.C. § 552(a)(4)(E) and 28
U.S.C. § 1920, for a total award of $12,775.51.

Respectfully submitted,

JUDICIAL WATCH, INC.

____________________________

Paul J. Orfanedes

D.C. Bar No. 429716Suite 500

501 School Street, S.W.

Washington, DC 20024

(202) 646-5172

Attorneys for Plaintiff

LOCAL
RULE 7.1(M) CERTIFICATE

I hereby certify that on at least three occasions from March 4-8,
2004, I attempted to contact counsel for Defendant United States Postal
Service, Dorann E. Banks, in a good faith effort to
determine whether her client would oppose the relief requested in the foregoing
PLAINTIFF’S MOTION FOR AWARD OF ATTORNEYS FEES AND LITIGATION EXPENSES and, if
there is opposition, to narrow the areas of disagreement.Each time I left a voice mail message for
Defendant’s counsel asking her to contact me to discuss Plaintiff’s
motion.As of the filing of this motion,
Defendant’s counsel has not returned my telephone calls.

________________________________

Paul J. Orfanedes

[1]Significant concerns had been raised
by postal service employees, including members of Brentwood Exposed, about
whether questions posed at the December 2001 community meeting were “staged” by
the USPS in order to facilitate the USPS’s
agenda.See, e.g.,
Plaintiff’s Opposition to Defendant’s Motion for Summary Judgment and
Cross-Motion for Summary Judgment, filed on or about July 7, 2004, at
11-12.Consequently, it was, and is,
important to know the identities of the persons who asked questions at the
community meeting in order to have any confidence in the USPS’s
public outreach efforts and representations regarding the decontamination
process.

[2]This matrix, commonly referred to as
the “LaffeyMatrix” or the “United
States Attorney’s Office Matrix,” is based on hourly rates allowed by the
District Court in Laffey v. Northwest
Airlines, Inc., 572 F. Supp. 354 (D.D.C. 1983).Use of an updated LaffeyMatrix was implicitly endorsed by the U.S. Court of Appeals for the
District of Columbia Circuit in Save Our Cumberland Mountains, 57 F.2d
at 1525.The Court subsequently declared
that parties may rely on the updated LaffeyMatrix prepared by the United States Attorney’s Office as evidence of
prevailing market rates for litigation counsel in the Washington, D.C.
area.See Covington
v. District of Columbia, 57 F.3d 1101, 1105 & n.14 (D.C. Cir. 1995).